Mzumbe Team 1 Memorandum for Respondent

2023 ALFRED DEAKIN INTERNATIONAL COMMERCIAL ARBITRATION MOOT

MZUMBE TEAM 1

MEMORANDUM FOR RESPONDENT

On behalf of: Against

YTZ shoes & Pte Ltd. Trans- Pacific Import & Exports ltd.

Levels 5-9, Jelutong Road, Ranan Breynia. Level 5-7, 1001 Winford Road, Wentworth,
Victoria Island.

RESPONDENT CLAIMANT

2023
Mzumbe Team 1 Memorandum for Respondent

A: THE TRIBUNAL SHOULD NOT COMPEL THE RESPONDENT TO PRODUCE

I: The Arbitral Tribunal has no power to compel the RESPONDENT to produce Mr. Tran’s text
message.

1. Cf. Claimant’s AI, Within the period agreed by the parties or determined by the tribunal the CLAIMANT
shall state the facts supporting his claim, the points at issue and the relief or remedy sought. 1

2. According to the travaux preparatoires principle, there must be a documentary evidence of the
negotiation, discussion, for interpretation in case of ambiguity. 2 It is intended to ensure that although the
parties cannot derogate from the principle provided in Article 23 (1)of UNCITRAL Model law they
should have freedom to agree on the specific rules of procedure in respect of the statement of claims and
defence.3

3. CLAIMANT should retrieve valid evidence or statements and should identify the facts at issue, the points
in dispute and the relief or remedy claimed.4

4. Cf. Claimant’s AII, if the CLAIMANT fails to communicate his statement of claim in accordance with
Article 23(1), the Arbitral Tribunal shall terminate the proceedings. 5

5. In the case of Indian oil Corporations Limited v Atv. Projects India Ltd, the failure of the claimant to
provide facts to support his claims rendered the Arbitral Proceedings to be terminated accordance to
Article 23(1).6

II: There is no cogent reason on receipt of a valid communication.

6. Cf. Claimant’s AII, RESPONDENT submits that CLAIMANT’S message did not provide any details
showing the identity of the sender but only the details of the transaction 7. In addition, Mr Tran had quit
his job in March 2023 for personal health reasons.8

1
United Nations Commission on International Trade Law, opened for signature on 21 June (amendments as adopted
in 2006) art. 23 (1) (UNCITRAL Model Law)
2
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969 (entered into force on January 27,
1980).
3
Report of the United Nations Commission on International Trade law on the work of its eighteenth session
(Official Records of the General Assembly, Fortieth Session, Supplement, [2007] 2 SLR 789; [2007] SGHC 31
4
United Nations Commission on International Trade Law, Digest of case Law on the Model Law on International
Commercial Arbitration. [2012]
5
UNCITRAL Model Law (n 1), art. 25 (a)
6
Indian oil Corporations Limited v Atv. Projects India Ltd, [2004] HC India, Delhi.
7
Moot problem, Procedural Order No.1 [3a] 18.
8
Moot problem, Exhibit R3: Witness statement by Mr. Trans.(omitted)
Mzumbe Team 1 Memorandum for Respondent

7. In the case of Uganda Telecom Limited v H- Tech Telecom Pty. Ltd a communication was addressed to
a party and delivered to the party’s mailing address and not returned by the post or courier company it
could be assumed that someone associated with the party had signed for and received it and not
necessarily the usual recipient.9 This applies to the present case whereby the recipient of the text message
may be not necessarily to be Mr. Tran it can be another co-worker of the company.

B: THE TRIBUNAL HAS NO JURISDICTION TO HEAR THE CASE.

I: There is no valid arbitration agreement between the CLAIMANT and the RESPONDENT and the
Australian arbitration law cannot act as lex arbitri of the dispute.

8. RESPONDENT submits that there is no any arbitration agreement between CLAIMANT and RESPONDENT.

9. Any arbitration agreement should be an agreement by the parties to submit to arbitration all or certain
disputes which have risen or which may arise between them in respect of a defined legal relationship or
not.10

10. Cf. Claimant’s BI, RESPONDENT only acknowledged details of the order but did not express his
consent to arbitrate, and there is no any provision, which provides the consent of the RESPONDENT to
arbitrate and the application of law of arbitration.11

11. By entering into an arbitration agreement the parties commit to submit certain matters to the
arbitrator’s decision rather than have them resolved by law courts. 12

12. In the case of Jagdish Chander v Ramesh Chander & Ors. The court held that, an arbitration
agreement shall be an agreement if so by the parties mutually accept and decide that their dispute will be
settled or referred in the arbitration.13

13. Cf. Claimant’s BII, In the present case the only contractual agreement that existed was between the
RESPONDENT and Mr. Triumph and not the claimant, thus for arbitration proceedings to be conducted
there must be an inclusion of an arbitration clause between the parties. 14

9
Uganda Telecom Limited v H- Tech Telecom Pty. Ltd [FCA 131] 2011
10
UNCITRAL Model Law (n1) art. 7(1)
11
Moot Problem, Exhibit R4, [1] 15.
12
United Nations Conference on Trade and Development, dispute settlement in International Commercial
Arbitration, Arbitration Agreement. 2005.
13
Jagdish Chander v Ramesh Chander & Ors [2007] Supreme court of India.
14
Moot problem, Exhibit R4, [1] 15.
Mzumbe Team 1 Memorandum for Respondent

C. THERE WAS NO CONTRACT OF SALE OF GOODS FORMED BETWEEN CLAIMANT

14. Cf. Claimant CI, this Tribunal should not consider the agreement as a valid contract as it lacks the
basing aspect of the valid contract as according to CISG Rules.

15. Cf. Claimant CI (1), on the aspect on the governance of the contract agreement, the CISG rules
governs only the formation of the contract of sale and right and duties, and not the validity of the
contract.15

16. Cf. Claimant C1 (I.1), as per the statement made by the CLAIMANT, RESPONDENT oppose them as to
the sense of the determination of the validity of the contract. Whereas being declared by the claimant by
using CISG, this convention governs only the formation of the contract of sale and the rights and
obligations of the seller and the buyer from such a contract, and it is not concerned with the validity of the
contract.16

17. Cf. Claimant C1 (I.2) on balance, even its show how the contract of sale can be, but any materially is
outweighed by the burden on dealing with the right and obligation and not the validity of the contract, and
purpose to that is to have a uniform standard in dispute resolution.17

18. Cf. Claimant CII, the validity of the contract cannot be determined by the CISG. The tribunal cannot
draw the solution on the validity of the contract with the inference to the matter of where several articles,
which it makes clear that the subject matter of the convention is restricted to formation of the contract and
the rights and duties of the buyer and seller arising from such a contract. In particular, the convention is
not concerned with the validity of the contract.18

19. Therefore, RESPONDENT respectfully submits that the tribunal cannot draw the solution on the validity
of the contract agreement. And even if the Tribunal find that the contract is formed, the case will be
focused on the right and obligations which the claimant fails to pay the remaining money. Such that, we
pray this Tribunal to order the CLAIMANT to perform his duty as we were agreed.

D. THE CLAIMANT’S REJECTION OF GOODS DUE TO SUBSTANDARD QUALITY

15
United Nations Convention on Contract for the International Sale of Goods, opened for signature 11 April 1980,
(entered into force 1 January 1988) art. 4 (a) (‘CISG’)
16
CISG (n.1) art. 4 (a)
17
Delchi Carrier SpA v. Rotorex Corp. (1995) 71 F.3d 1024
18
As explained in the Explanatory note by the UNCITRAL Secretariat on the United Nations Convention on
Contracts for the International Sale of Goods. On part A
Mzumbe Team 1 Memorandum for Respondent

20. RESPONDENT respectfully submits that, on Cf. Claimant D1 (I.1), the CLAIMANT correctly points that,
the CISG regulate the buyer’s right to examine goods, whereby the goods are not considered to be
accepted until the buyer has had a reasonable opportunity to examine them. 19

21. Cf. Claimant DI (II.1) the CLAIMANT misconstrued Article 39 (1) of the CISG, where the provision
itself, it does not prompt the buyer on giving notice, while it is the rule where the right or buyer will lose
the right if he did not give the seller notice, which affect the aspect to the result of late notice. 20

22. Cf. Claimant, DII. RESPONDENT declines the reasonability of notice.

23. Cf. Claimant, DII (II.I) the rejection by the CLAIMANT might be within a reasonable time, but as per
the CISG the notice is thereof at the latest within a period of two years from the date on which the goods
were actually handed over to the buyer.21

24. Cf. Claimant, DIII, RESPONDENT respectfully submit that, there is a failure on the notice of the non-
conformity of the goods claimed by the respondent which reflect the hardness of the performance of the
agreement by being aware of the duties if the notice were communicated even after the time of
conformity.22

25. Cf. Claimant, DIII (III.1), in so far as it related to the above issue, then it unless if it is inconsistent
with a contractual period of which it was guaranteed. But the silence of the notice on a specific
performance would cause hardship to respondent in so far as to failure of the said notice.

26. Cf. Claimant, DIV, RESPONDENT respectfully denied the CLAIMANT to claim the rejection to be
retained as a right/ remedy by the two reason, lack of the conformity, 23 and the none communication due
to the failure of claimant to assess the defect to the respondent.

27. Cf. Claimant, DIV (IV.1), as according to the fact provided, RESPONDENT respectfully submit that,
this tribunal cannot stand on the determination of such notice while it was not communicated. 24

28. Therefore, Cf. Claimant, DIV (IV.2), the aspect on the defectiveness of the goods must be noticed to
the seller. And the defectiveness cannot be considered on

19
Section 41 (1) of the Goods Act, 1958
20
Seadrill Ghana Operations Ltd v Tullow Ghana Ltd [2018] EWHC 1640 (Comm) (03 July 2018)
21
CISG (n.1) art. 39 (2)
22
CISG (n.1) art. 36 (1)
23
Moot Problem, Exhibit C5 [2] 8
24
CISG (n.1) art. 39 (1)
Mzumbe Team 1 Memorandum for Respondent

BIBLIOGRAPHY

A. Articles/Books/Reports

United Nations Conference on Trade and Development, dispute settlement in International Commercial
Arbitration., Arbitration Agreement. 2005.

Report of the United Nations Commission on International Trade law on the work of its eighteenth
session (Official Records of the General Assembly, Fortieth Session, Supplement, [2007] 2 SLR 789;
[2007] SGHC 31.

Simmons & Simmons. (n.d.). Retrieved August, 2023, from

B. Cases

Bab Systems Inc. v McLurg, [1994] Ontario, court of Justice, General Division. Canada.

Delchi Carrier SpA v. Rotorex Corp. (1995) 71 F.3d 1024

Indian oil Corporations Limited v Atv. Projects India Ltd [2004] HC India, Delhi.

Jagdish Chander v Ramesh Chander & Ors [2007] Supreme court of India.

Seadrill Ghana Operations Ltd v Tullow Ghana Ltd [2018] EWHC 1640 (Comm) (03 July 2018)

Uganda Telecom Limited v H- Tech Telecom Pty. Ltd [FCA 131] 2011

Treaties

Vienna Convention on the Law of Treaties, opened for signature May 23, 1969 (entered into force on
January 27, 1980).

United Nations Convention on Contract for the International Sale of Goods, opened for signature 11 April
1980, 99 CISG (entered into force 1 January 1988)

Others

United Nations Commission on International Trade Law opened for signature on 21 st June 1985
(amendments as adopted in 2006).

United Nations Commission on International Trade Law, Digest of case Law on the Model Law on
International Commercial Arbitration. [2012]